I have a multi-part question:
1) Am I legally able to write a spec script on an existing work (book) to gain producer interest with the goal of the producer liking the script so much that the producer purchases the available rights to the existing work?
2) What is the difference between a work ‘inspired by’ and ‘based on’ an existing work?
3) I would also love to know if your firm can represent a writer (who does not have an agent) to a producer whose acquisitions specialty has expressed an interest in looking at my project as long as it is presented to them by an agent?
Answer by Brandon Blake, Entertainment Lawyer:
A couple of important rights questions that I get a lot of comments about from clients. Every film and television project starts with a written work so I try to provide as much assistance as possible for writers, whether they are hired to write projects or are writer-directors or writer-producers. Let me answer your questions in order:
1. Spec Adaptations
When it comes to spec scripts to existing works, there are a number of considerations to keep in mind before starting. I will point out that the question here does not deal with selling the spec script to the author or owner of the property, but doing so for the purpose of facilitating a sale of the underlying work to a third party. This is a different approach than the typical spec project where the writer wants to contact the original owner with the new adaptation. I still do not think this is a great approach, for a number of legal and strategic reasons that I will detail below.
First, with respect to the legal considerations, most adaptations of existing works will end up being infringing works under US copyright law, as well as in any country that is part of the Berne Convention, which includes Europe and most of Asia, 170 countries in total around the world.
While it is possible to create an adaptation so tangential from the original as to not constitute a copyright infringement, another consideration would be trademark law. Many of the famous characters in animation and publishing also have trademarks that protect use, so it is possible for an adaptation to not constitute a copyright infringement, but still be a trademark violation.
Finally, in this case, you are essentially “publishing” your adaptation to at least one other person besides the owner, and this would increase the possibility that the work would be an infringement.
Second, writers should consider the strategic position that writing an unauthorized adaptation of a work puts the writer. In this case, the producer does not yet own the underlying rights, so the writer is not in as bad a situation as usual, because the producer would have to hire another writer to avoid acquiring the writer’s adaptation. So from a strategic position it is not as poor an idea as when approaching the original owner, but would still be a tough place to negotiate from.
Third, it goes against industry custom to adapt a work that the writer does not have authorization to write. If a writer approaches agents or producers with the idea to write a spec adaptation, most of them will not want to discuss it. The exception of course, and this is a big exception, is if a producer or author has asked the writer to write a spec script, but without a formal agreement being signed. This can certainly happen, and some producers are very informal, but given that there was a request made for the work, that separates the situation in my mind from the purely spec situation. Also in this case, presumably even if the producer asked the writer to prepare the adaptation, the producer does not actually have the rights either.
2. ‘Inspired By’ versus ‘Based On’
There is not a legal difference between stories that are ‘inspired by’ versus ‘based on’ some other material. Also in reference to the above question, a writer is not free to write a work ‘inspired by’ another work of fiction such as a book or movie. Generally, when a film uses the ‘inspired by’ phrasing in its marketing and promotion, it is trying to create a marketing link to some popular real life story or event. It often indicates that the rights to that story have been fictionalized and that no first-hand works or life-stories have been acquired.
‘Based on’ generally means that the producers or production company did acquire the rights to the real life story, and suggests the work is in some way authorized by some of the participants in the events. However, there is not a legal distinction between the two phrases, and using the phrase ‘inspired by’ does not relieve the writer from needing to consider acquiring the rights to the story.
3. Representation of Projects
One of the things that a law firm like ours can do is to serve as representation for a project, so that it can be submitted to a production company or studio. I have published a number of articles about the various legal reason why producers, production companies and studios do require the script, story or treatment to be represented by an agent or entertainment attorney, so I will not go through those again. Feel free to visit http://filmtvlaw.com/blog/2015/12/30/agent-and-lawyer-submissions where I have a fairly detailed explanation of the situation.
When we represent a project, we do so as part of a package of services, which allows us to review the material, help with any needed legal issues, and also submit the project to production companies and studios that might be interested in the work. We do not provide one-off type of assistance such as sending one letter for a client, as that would mean that the project was not really represented by our firm.
As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects and television series for more than 16 years. Please feel free to contact my office about a quote.
- By Brandon Blake, Entertainment Lawyer